Content Industry War on Sharing Claims Another Victim

LendInk, an innovative site dedicated to helping readers share their legally purchased ebooks with one another, has chosen to shut down in the face of legal intimidation. Despite the fact that the site was apparently operating within the terms of service of the Amazon Kindle and the Barnes & Noble Nook, its hosting company was targeted with "hundreds of threats," including cease-and-desist letters.

LendInk didn't even host any ebooks itself: it simply connected users seeking a particular title with other users who had a legally-purchased ebook to lend. The site planned to eventually make money by providing links to purchase books through the Amazon affiliate program, but for the past year it had been operating without income.

This shutdown sets a dangerous precedent for the future of innovation in the ebook world. It creates confusion for consumers about what behaviors are actually legal and will likely have a chilling effect on entrepreneurs that could otherwise create new businesses — and new profit centers for the publishers. In an interview with Digital Media Machine, LendInk's owner Dale Porter expressed his disappointment in having to shutter his business:

I am simply a hard working guy that was trying to provide a legit service. ... Sadly, it appears that my American Dream has been left as road kill at the hands of misguided individuals.

That those misguided individuals were able to target his site so effectively is a potent reminder that free speech is only as strong as the weakest link. In this case, the threats took the form of cease-and-desist letters to his hosting service — and as a result, he hasn't even had the opportunity to review the notices himself. As he told Digital Media Machine, it's not even clear yet whether the notices are from authors, publishers, or both.

But it's clear that the individuals are misguided, because LendInk only enabled activities that had already been approved by the rightsholders. In fact, all of the lending enabled by the site took place through the built-in Kindle and Nook lending features, which are extremely limited in comparison to a traditional book. Not only is it limited to ebooks that have been explicitly "lending-enabled," but each copy of the ebook may also only be lent exactly once for a total of 14 days. Loans can only be initiated by a user in the United States, but may be unsuccessful if the recipient is in a country with additional geographic restrictions.

Of course, these barriers come from contracts, not from limitations in the technology. It's clear that while ebooks could in theory be more flexible and versatile than paper books, prohibitive licenses have prevented that from happening.

As author and EFF Fellow Cory Doctorow has put it, "Everyone knows that it's a bug and not a feature that if one person is reading a book, someone else can't." Instead of trying to patch the bugs that afflict traditional books, publishers use DRM software and restrictive licenses to suppress the potential new features.

Some of these efforts even attempt to unravel the first sale doctrine, which has long been a cornerstone of U.S. copyright law. That principle means that "if you buy it you own it," and it's the way used bookstores can exist. Indeed, it is essential to real-world book-sharing communities like BookCrossing and BookMooch.1

The legal threats against service like LendInk are not about sales. Rather, they are just the latest efforts in a wrongheaded campaign to crush any segment of the content distribution chain that lies outside of the rightsholders' traditional direct control. The same mindset drove Warner Brothers to sue Redbox, the kiosk-based DVD rental operation, even though it was perfectly legal under the first sale doctrine. It's led Capitol Records to sue an emerging marketplace for "second-hand" digital music, even though used music sales have existed for decades. It's even behind the Association of American Publishers' stubborn opposition to a treaty that could end the "famine" of accessible books that devastates the visually impaired community.

Needless to say, this mindset can only result in less innovation. And that's bad for readers, it's bad for platform developers, and in the end it's bad for publishers, too.

1. The founder and administrator of BookMooch, John Buckman, is also the chairman of the EFF board of directors.

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